Category Archives: Featured

Having Trouble Navigating the Unpredictable Waters of eDiscovery?

eDiscovery adventure guide

Ipro’s eDiscovery Adventure Guide

Find out how 5 legal teams overcame their challenges, utilizing Ipro’s Hybrid approach to eDiscovery.

There are a lot of stakeholders and processes involved in eDiscovery, which makes it an extremely complex adventure. For many years, people said that with the right software, you could handle everything. But software alone isn’t enough. That’s why you need a technology partner to help navigate the unpredictable waters of eDiscovery.

When software isn’t enough: Data continues to grow in size and complexity, and the need for that data in investigations and litigation is now a daily occurrence. For an agile response, innovative approaches to eDiscovery are necessary, and rather than trying to go at it alone, forward-thinking legal teams will look toward a hybrid approach.

Download the eDiscovery Adventure Guide Today!

Ipro eDiscovery Adventure Guide

How Case Managers Bridge the Gap Between eDiscovery Software & Services: An Interview with Lori Bregenzer

eDiscovery case managers

Ipro’s hybrid approach to eDiscovery means we’re more than just a software producer: we bring a true partnership to the table via our Case Managers, whose ultimate goal is to become an extension of your team – to know the details of your data, the deadlines that are looming, and provide options for the most efficient and stress-free experience as possible.

As a way of highlighting this partnership, we’re featuring our Case Managers here in the Ipro Newsroom.

Lori Bregenzer brings over 20 years of litigation technology experience to the Ipro Services Team. Her background as the Litigation Technology Manager for a large law firm and subsequently as the owner of a boutique litigation software training and consulting company has built a solid foundation of both technical and customer-focused skills which she leverages in her role as Case Manager for Ipro.

Here are the highlights of our conversation:

What makes Ipro Case Managers unique in the eDiscovery industry?

“Decades of industry experience using, training, supporting, and consulting on litigation technology. In my positions prior to joining the Ipro team, I struggled to find a service provider who took the time to learn the intricacies of my projects. Quite often, my project was treated as ‘just business’. It’s very rare in this industry to find a provider who strives to becomes a true partner.

“We know the Ipro solutions better than anyone else. We also know our competitor’s software, because we’ve actually used it in the past. Our goal is to become an extension of your case team, bringing value by building in efficiencies, custom workflows, and unparalleled technical skills.”

How does an Ipro Case Manager help clients?

“We take time to learn the details of your project so that we can suggest ways to simplify the complex discovery tasks you face every day. Our goal is to ease the many pain points of processing, document review, and production.”

What are some of the biggest challenges / trends you’re seeing in the eDiscovery industry?

“Collecting, organizing, and managing the ever-expanding volume of data involved in litigation today.”

How does Ipro generally and Ipro’s Case Managers specifically solve these eDiscovery issues?

“Ipro is completely scalable in our solutions. No project is too big or too small. Ipro’s Case Managers have years of experience dealing with all levels of projects and the many difficult processing and production requests that invariably come up.

“This personalized approach to eDiscovery services is what draws me to the Case Manager position. As your Case Manager, I make it my business to build a relationship with your legal team. We’ll discuss your data processing requirements up front and develop a game plan to get your review off to a quick and successful start. I’ll point out ways to conduct document review more efficiently, and thus more cost effectively. Additionally, I’ll know when the deadlines are coming and proactively work with you to not only meet them but beat them.”

To Learn more about Ipro’s Managed eDiscovery Services, visit us here!

3 Veteran Practitioners Discuss eDiscovery from the Trenches

eDiscovery from the Trenches WebinarThe old adage, “Those who do, do; and those who can’t, teach” is completely off-base, because the value of getting education from people who have been in your position and have experienced the difficulties first hand is priceless. That’s why people in all industries and trades seek out those veteran practitioners to share their experiences and act as mentors.

And eDiscovery is no different, especially with its unique challenges. Which is why Ipro chose 3 veteran eDiscovery practitioners with decades of experience to speak on our latest webinar: eDiscovery from the Trenches.

  • Brittany Thaler has eleven years’ experience in supporting teams as a paralegal and hot-seat operator in numerous arbitrations, evidentiary hearings, and trials (both bench and jury), and as a Litigation Support Paralegal, she advised, created, and managed various eDiscovery matters and presentation of cases at trial.
  • Jaime Sheppard has managed eDiscovery projects spanning Am Law 50 firms and FORTUNE 50 companies in a variety of practice areas, including product liability, antitrust, insurance, commercial litigation, and intellectual property, as well as non-litigation reviews, working closely with case teams to devise discovery plans and protocols, manage reviews, perform technical quality control, coordinating forensic collection of sensitive documents, etc.
  • Lori Bregenzer brings over 20 years of litigation technology experience with a background as the Litigation Technology Manager for a large law firm and subsequently as the owner of a boutique litigation software training and consulting company. These experiences, coupled with her many software certifications as well as the designation of Certified eDiscovery Specialist from ACEDS, give her a vast knowledge of eDiscovery and legal technology.

In the eDiscovery from the Trenches webinar you will hear about:

  • Industry Challenges & How to Overcome Them (Education, Cost, Technology)
  • Tips & Tricks for Developing a Successful Workflow (Managing Data, Search Techniques, Analytics/TAR)
  • How Technology Can Level the eDiscovery Playing Field (Smaller Firms, Judges View, Accessibility)

Women in eDiscovery Phoenix Chapter Hosts Judges Roundtable

Women in eDiscovery Phoenix Judges Roundtable

Women in eDiscovery Phoenix Chapter Hosts Judges Roundtable

Photo: Front Row:  Kate Mortensen (Chief Legal Officer, Xact Data Discovery), Jamie Sheppard, (Client Success Manager, Ipro Tech), Tiffany Trejo (eDiscovery Specialist, Ricoh eDiscovery), Judge Pamela Gates (Maricopa County Superior Court, Presiding Judge), Judge Danielle Viola (Maricopa County Superior Court, Victoria Stevens (Sr. Paralegal, Wilenchik & Bartness, P.C.); Second Row: Judge Samuel Thumma (Arizona Court of Appeals), Lisa Waldin (Project Manager, Ryley Carlock), Judge Dominic Lanza (US District Court for the District of Arizona)

On October 17th, the Phoenix Chapter of Women in eDiscovery hosted a Judges roundtable event at the downtown offices of Snell & Wilmer. Four judges came to speak to over fifty attendees about eDiscovery trends and best practices they are seeing from the bench. Lunch was sponsored by Ipro.

WiE was launched in 2007 as a non-profit organization focused on providing women with legal technology education, networking and leadership opportunities. It’s now 28 chapters strong and growing, with each hosting monthly or quarterly meetings comprised of professionals within the legal industry including law firm and corporate legal attorneys, litigation support professionals, paralegals, legal IT staff, consultants, and vendors.

Below are highlights of what each speaker shared during the roundtable.

 

Hon. Dominic W. Lanza, US District Judge for the District of Arizona

eDiscovery Tip: “I don’t always hold Rule 16 meetings but begin with a Rule 26f conference right away. It may be your only shot to raise issues or concerns, so it’s vital that you find a way to be concise in disputes and crisply discuss scope with a focus on specifics and costs during the meet and confer.”

Before his appointment to the bench in 2018, Judge Lanza spent 10 years at the U.S. Attorney’s Office in Phoenix, where his responsibilities included serving as the chief of the financial crimes and public integrity section and, later, as the office’s chief assistant. Before joining the U.S. Attorney’s Office, he worked for five years at Gibson Dunn & Crutcher in Los Angeles, specializing in appellate litigation, and clerked for Judge Pamela A. Rymer of the Ninth Circuit.

 

Hon. Pamela S. Gates, Maricopa County Superior Court Presiding Judge

eDiscovery Tip: “I suggest a focus on cooperation by all parties through the 4 P’s of eDiscovery: Preservation, Production, Protection, and Proportionality. For example, if something can’t be produced, give reasons. The worst thing that could happen is to claim you’ve produced everything and have opposing counsel bring up something you’ve missed.”

Judge Gates was appointed by Governor Jan Brewer in September 2009 to serve on the Maricopa County Superior Court. She currently serves as the Presiding Civil Judge. Prior to this rotation, she served as the Associate Criminal Presiding Judge and the Associate Presiding Judge for Family Court (Downtown). Judge Gates served on numerous state-wide committees and received the 2018 Maricopa County Bar Association Judicial Officer of the Year Award and the Penny Gaines Collegiality Award. Prior to becoming a judge, she worked as a partner at Bryan Cave LLP.

 

Hon. Danielle J. Viola, Maricopa County Superior Court Judge

eDiscovery Tip: “Unless judges understand all of the details, they can’t rule. This is why it’s important to provide specific information, especially during proportionality complaints, and make experts like I.T. personnel readily available to answer questions.”

Judge Viola was appointed to the Maricopa County Superior Court in 2011. She currently enjoys a civil assignment and is chair of the Jury Advisory Committee for Maricopa County Superior Court, as well as serving on the Advisory Committee on the Rules of Evidence and the Court Interpreter Program Advisory Committee. From 2014 through 2019, Judge Viola presided over a criminal calendar where she also served as the Administrative Judge for the Post-Conviction Relief Unit and as the Associate Presiding Judge for the Criminal Department. Prior to joining the bench, Danielle she was a partner at Snell & Wilmer.

 

Hon. Samuel A. Thumma, Arizona Court of Appeals Judge

eDiscovery Tip: “Judges are strangers to the individual cases, so you need to be prepared to educate and explain. Anytime you have an ESI issue come up, it’s a learning opportunity for everyone. This is why it’s important to have eDiscovery experts who are able to speak to both the technology and legal concerns in clear language.”

Judge Thumma has served on the Arizona Court of Appeals, Division One, since 2012, serving as Chief Judge for two years ending June 30, 2019, and Vice Chief Judge for two years ending June 30, 2017. Before being appointed to the Court of Appeals, Judge Thumma served as a Judge on the Arizona Superior Court, Maricopa County, for nearly five years, presiding over criminal and juvenile matters (including nearly 250 trials) and serving as an elected member of the Judicial Executive Committee. Nationally, Judge Thumma is a Uniform Law Commissioner, where he chairs the Study Committee on Jury Selection and Service; is a member of the Committee to Monitor Developments in Civil Litigation and Dispute Resolution and chaired the Drafting Committee for the Uniform Employee and Student Online Protection and Privacy Act (2016). He is a member of the American Bar Foundation. By appointment of the National Center for State Courts, he serves on the Joint Technology Committee, a cooperative effort of the NCSC, the Conference of State Court Administrators and the National Association for Court Management. Judge Thumma is a frequent lecturer and author, having presented at more than 340 seminars and published 12 law review, and 50 other law-related, articles. Before joining the bench, Judge Thumma was a partner at Perkins Coie Brown & Bain, P.A., in Phoenix, and an associate at Arnold & Porter in Washington, D.C.

 

4 Challenges When Conducting an Enterprise eDiscovery Data Inventory

enterprise eDiscovery data challenges

4 Challenges When Conducting an Enterprise eDiscovery Data Inventory

An important first step to help corporate counsel and their departments more efficiently manage enterprise eDiscovery data before litigation arises, is understanding your organization’s data landscape in order to avoid potential data pitfalls in the middle of a matter.

The challenge lies with the near infinite number of file types (and variations within each type) in which data can live. Every program and application you use creates different file types: email, chat, social media, planning and content-creation tools, etc. Different versions of the same program or application create variations of those file types, and different formatting within each of those can create still more variations.

Here are 4 Data Challenges any enterprise should discuss with their IT Director and eDiscovery Manager, so that they can begin a data inventory and put policies in place ahead of litigation, which will greatly cut down on roadblocks later.

  1. The Fringes – Legacy and Bleeding Edge

Have you ever cleaned out your closet and found that shoebox full of cassettes from college? Businesses are no different. Many of their electronic files are stored as legacy file types which are no longer supported. A great example is one company who needed to review files which were saved on 8-inch floppy disks! Knowing this ahead of litigation is important.

On the other end of that spectrum, being on the forefront of technology is great, but when it comes to preparing files for eDiscovery, it can slow things down. Similar to knowing about legacy files, it’s also important to take note of recently developed software or applications your organization may use which creates unique file types.

  1. New Data Sources – Mobile, IM, and Social Media (Oh My!)

Mobile devices can be difficult when it comes to eDiscovery for many reasons. They contain a large variety of file-types and data intermingled with a lot of private information, which may be privileged. Extracting specific information can be difficult and imaging an entire device can be costly. This is why it’s important to have policies in place to determine how mobile devices are used for business purposes.

Organizations are also relying on messaging platforms (Slack, Teams, and What’s App are good examples) and social media to conduct business. Data can usually be requested from the source company (For example, Instagram has a data request form in its Privacy and Security settings), but it can be difficult to put into a review-ready format. So, knowing if these platforms are a potential source of data—should litigation arise—is important.

  1. The Oddballs – Unsupported Data Files

Besides the file types listed here, there are a myriad of other unsupported file types which may come into play (A good example are CAD files used by an architecture or construction company). Because they are used every day by members of an organization, the fact that they may be difficult to process for review may not be considered in the event of legal action.

  1. Size Matters – Understanding Your Organization’s Overall Dataset

Besides knowing the file types your organization may use, knowing the size of that data is also difficult to capture, especially with the exponential growth of electronic information each year. Doing a data inventory will give you an idea of how much data is created for a given amount of time, as well as how much of that data may be ROT (Redundant, Obsolete, Trivial).

It’s easy to get stuck in a “that’s the way we’ve always done it” mentality, but eDiscovery data challenges shouldn’t get in the way of your enterprise legal team’s ability to quickly understand the facts in a matter. For more insights into your organization’s data landscape, Download the Ipro Pre-Litigation Data Inventory Checklist now!

Ipro Pre-Litigation Data Checklist

Grab BigData by the Horns: Download Ipro’s Pre-Litigation Data Checklist!

For corporations, litigation is not a case of “if” but “when.” However, this risk can be mitigated with repeatable processes and preparation, especially when it comes to data. Moving data to Early Case Assessment (ECA) as soon as possible allows your legal team to quickly get to the facts of the case.

A first step in this process is to use Ipro’s Pre-Litigation Data Checklist as a guide to effectively manage enterprise data in order to avoid potential data pitfalls in the middle of a matter.

Download the Ipro Pre-Litigation Data Inventory Checklist

Ipro Pre-Litigation Data Checklist

Using Video Deposition Testimony for Opening Statements & Closing Arguments (Ipro Guest Blogger, Attorney Joshua Gilliland)

Trial Video Depositions

*Editor’s Note: Today’s Ipro blog was written by Joshua Gilliland, a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

Trial advocacy is a mix of law and theater, requiring a lawyer to know both the law and their audience. Attorneys must effectively argue their client’s case using the evidence and the jury instructions to show their client is right (or has been wronged), and it is up to the jury to put things right.

The opening statement is an opportunity to set the stage for what the trial is about, and the closing argument is the chance to tie all the issues together with a bow. One highly effective strategy for both is using video depositions, but they must meet the requirements in Federal or state court.

Strategic Reasons to Use Video Deposition Clips

Back in 2002, David Narkiewicz described the value of using video depositions in trial as follows:

Video DepositionWithout a doubt, trial presentation software is most powerful when used to show a clip of a video deposition while simultaneously showing the transcript for the jury to watch and read. Instead of just showing a video clip, highlighting a particular comment by the witness with a color, such as yellow, can make the use of that clip extremely powerful. You can retrieve this clip by just typing in the page and lines of the transcript, and the video and transcript are played instantly on the screen.

Jurors today have lived with smartphones that allow them to watch videos in the palm of their hand, and many of these jurors are in Generation X or Millennials and want to hear the bottom line and not a presentation that manipulates their emotions.

This requires thinking about how to use short video deposition that conveys the key message, such as “day-in-the-life” videos, or using a specific passage of testimony that sums up a case are effective ways to maximize trial presentation technology to simply state complex information for the jury to understand.

Deposition testimony allows jurors to get an immediate look at a party (or party representative) in a lawsuit. However, just because you can show a line of deposition questions and answers, does not mean you should. The facts of the case can dictate the trial strategy.

As trial presentation expert Ted Brooks of Litigation-Tech has explained, video depositions of deceased parties were used in an asbestos reinsurance case from early in his career. Without the video depositions, the only way the jury would have “heard” the deceased’s testimony was to hear someone read it into the record.

The fundamental strategic reason for using a video deposition clip in an opening statement or closing argument boils down to effectively communicating the key facts of a lawsuit.

How to Prepare Video Deposition Clips

The first step in preparing video deposition clips in TrialDirector 360 is to have a synchronized video deposition. A video deposition can be synched in TimeCoder Pro, but it is highly likely a court reporter firm will provide a synced Digital Video Transcript (DVT file) that can be loaded into TrialDirector 6 or Trialdirector 360.TrialDirector 360

Video deposition clips can be created by selecting the relevant page and line designations within the transcript. Attorney colloquy and objections in the deposition should be edited out so the clip is only of the question and answer. It is often required that the questions before and after the relevant examination designation need to be included to give context to the answer. As every trial is unique, what needs to be presented can vary.

The main point of having a video excerpt in a closing argument or opening statement is for impact. This could be because a person is deceased, there is an admission of extreme importance, or the deponent gave inconsistent testimony at trial. There are numerous reasons to want to use a video deposition clip, but the key issue is presenting some testimony the jury will not forget when they begin deliberations.

Notes on Depositions from the Federal Rules of Civil Procedure

Federal Rule of Civil Procedure Rule 32 allows a party to use a deposition against an adverse party if the party had was present or represented at the deposition; had notice of the deposition; would be admissible under the Federal Rules of Evidence; and meets one of the Rule 32(a) requirements. Fed Rules Civ Proc R 32(a)(1)(A), (B), and (C).

Federal Courts have allowed video deposition excerpts in opening statements. In one case where a party brought a motion in limine to exclude the use of a video deposition, the Court allowed the video deposition because Rule 32(a)(2) states a deposition can be used for “any purpose” and the opposing party’s conduct was factually relevant and could be alluded to in opening statement. Northfield Ins. Co. v. Royal Surplus Lines Ins. Co. (C.D. Cal. July 7, 2003).

In another case, the proffering party was limited to use video deposition testimony under Federal Rules of Evidence 403 that prohibit cumulative evidence, because the deponent was going to testify at trial. Beem v. Providence Health & Servs. (E.D. Wash. Apr. 19, 2012).

In a complex technology case, the Court granted a motion in limine excluding a video deposition clip from an opening statement, explaining, “…if unrestricted, a video deposition can be shown once in opening, again during trial (at least once), and in closing in the exact same form. Repeatedly showing the same few deposition segments seems to exalt the relevance of those videotaped shreds of evidence over live testimony.” Hynix Semiconductor Inc. v. Rambus Inc. (N.D. Cal. Jan. 21, 2008), citing Federal Judicial Center, Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial, 156 (2001).

(Interested in learning more about the Federal Rules of Civil Procedure? Check out Ipro’s FRCP Cheat Sheet!)

Notice Requirements Regarding Video Depositions

The use of a video deposition in trial is subject to notice requirements under Federal and state Rules of Civil Procedure. In Federal Court, a party must provide a transcript of any deposition testimony the party offers. Fed Rules Civ Proc R 32(c). In California, there must be a notice in writing of the intent to offer video depositions into evidence, which allow for objections and video editing. Cal Code Civ Proc § 2025.340(m). It is pivotal to know the local rules for submitting evidence lists and any standing orders for using video depositions in trial.

Sources:

[1] FEATURE: GENERATION X AND Y’S INFLUENCE IN THE JURY BOX, 50 Orange County Lawyer 42, 44.

[2] THE RANDOLPH W. THROWER SYMPOSIUM: CHANGING LITIGATION WITH SCIENCE AND TECHNOLOGY: VIDEO DEPOSITIONS, TRANSCRIPTS AND TRIALS, 43 Emory L.J. 1071, 1075-1076

[3] FEATURE: UNDERSTANDING AND USING COURTROOM TECHNOLOGY IN THE NEW HARRIS COUNTY CIVIL COURTHOUSE, 44 Houston Lawyer 30, 31

[4] DEPARTMENT: LEGAL TECH: TECHNOLOGY IN THE COURTROOM: TRIAL PRESENTATION SOFTWARE, 24 Pennsylvania Lawyer 49, 49

 

Download Ipro’s FRCP Cheat Sheet to brush up on your eDiscovery Rules!

FRCP eDiscovery Rules

Download Ipro’s FRCP Cheat Sheet to brush up on your eDiscovery Rules!

The Federal Rules of Civil Procedure (FRCP) are just that: rules established by the Supreme Court and approved by Congress, specifying procedures for civil legal suits within US federal courts. There are several of these that apply specifically to eDiscovery and understanding their role in the process is vital for any practitioner, whether you’re on a corporate legal team, part of a law-firm, or a specialist at a service provider.

Don’t want to read pages and pages of legalese just to learn the Federal Rules of Civil Procedure (FRCP) that apply to eDiscovery? We’ve got you covered!

Ipro FRCP Cheat SheetNeed to brush up on your Federal Rules of Civil Procedure as they apply to eDiscovery?

Download Ipro’s FRCP Cheat Sheet!

5 Reasons Your Legal Team is Being Held Back by Legacy eDiscovery Software

legacy eDiscovery software

We’ve all been there: we know we need to change our way of doing things but are stuck in the status quo. We tell ourselves, if it isn’t broken, why fix it, because the thought of going through the difficulty of evolving often overshadows any benefits that might come with updating.

Those of us working in eDiscovery are no different. Even as digital information is constantly growing, file types changing, and processing and review costs continue rising, we hang onto outdated software that becomes more and more unstable with age—from limited processing capabilities, issues with filetype compatibility, or a lack of continued development and support.

Here are 5 reasons why continued use of unsupported legacy software is a ticking time bomb in your eDiscovery process.

  1. Tech Support

This is an obvious one. Using legacy eDiscovery software that is no longer supported by the company that created it is like driving a car with high-mileage and no warranty: it may still run fine and get you from point A to point B, but when it breaks down, you’re on your own.

  1. Operating System Support

As far as digital lifespans go, 5 years is a long time. If your legal team is using legacy eDiscovery software which was created for older versions of an OS, it could lead to issues if it’s no longer being supported to meet with scheduled OS updates. (For example, Microsoft released Windows 10 in 2015, which has had 7 additional versions updates since then, with various “end of service” dates scheduled in 2020).

  1. File-type support

It’s no secret that data is growing exponentially each year, particularly in the corporate sector. From an eDiscovery standpoint, the challenge lies with the near infinite number of file types (and variations within each type) in which data can live. Every program and application you use creates different file types: email, chat, social media, planning and content-creation tools, etc. Different versions of the same program or application create variations of those file types, and different formatting within each of those can create still more variations. From this perspective, it’s easy to see why a legal team needs software that is continually being updated in order to keep up with this growth.

  1. Lack of advanced tools and analytics for today’s workflows

More and more, legal teams are looking to add the latest tools which increase the speed, accuracy, and efficiency of document search and review. If your team is using software that is no longer being developed or supported, you may be missing out on the latest innovations in Early Case Assessment (ECA), Technology Assisted Review (TAR), and other advanced technology which allows your team to deal with larger datasets and take on more complex cases.

  1. Difficulty meeting unique production requirements

FRCP Rule 34(b) states that a requesting party may specify the form or forms of ESI production, which are determined by the parties at the Rule 26(f) “meet and confer” conference. The inability to meet unique production requirements due to outdated or unsupported software will result in having to turn to outside service providers to do the job for you, resulting in extra costs and added stakeholders, in order to meet the production deadline.

Functional Software isn’t a Long-Term Solution

It’s time to stop struggling with legacy eDiscovery tools. Ipro easily migrates data from the most popular legacy flat-file review databases and has been purpose-built with the most cutting-edge features in eDiscovery. No matter what your eDiscovery needs are, Ipro has the flexibility, scalability, and value to meet them.

 

Register for Ipro’s upcoming webinar:

eDiscovery from the Trenches: 3 Veteran Practitioners Discuss How to Create a Successful eDiscovery Workflow

Should Mobile Devices be Imaged for eDiscovery? Recent Case Law Provides Insight

Mobile Devices Imaged for eDiscovery

Should Mobile Devices be Imaged for eDiscovery? Recent Case Law Provides Insight

Deciding whether mobile devices should be imaged can be difficult when it comes to eDiscovery. They contain a large variety of file-types and data intermingled with a lot of private information, which may be privileged. Extracting specific information can be difficult and imaging an entire device can be costly. So the question remains: To image or not to image? But not really. That’s why we have case law.

On the surface, it seems that imaging an entire device would fall beyond the usual scope of a matter as it’s defined under FRCP Rule 26. Specific relevant data would be the obvious choice over everything on a single device. Which is exactly how a magistrate judge saw it last year in Henson v. Turn (N.D. Cal. Oct. 22, 2018), when the court denied requests by the defendants to inspect personal devices of the plaintiffs, collecting web browsing history and cookies in the process, on the basis that the data sought was neither relevant nor proportional to the needs of the case.

But in a recent ruling by Special Discovery Master Hon. Rebecca Westerfield (Ret.) in the class action suit In re: Apple Inc. Device Performance Litigation (N.D. Cal. Aug. 22, 2019), the court determined that imaging a sample set of the plaintiffs’ mobile devices was proportional to the needs of the case under Rule 26. So what sets this case apart from Henson v. Turn?

The Case:

In re: Apple concerns the plaintiffs’ claim that Apple used operating system updates to “throttle” and hamper device performance regarding certain of its iPhone 6 devices, allegedly impairing “the integrity, condition, quality, and usefulness of the Devices without Plaintiffs’ knowledge or consent.”

Each side brought forward forensic experts. The plaintiffs’ expert, Mary Frantz, Managing Partner of Enterprise Knowledge Partners, LLC, asserts that “Apple’s internal databases such as collected historical diagnostics, support, and potentially archived cloud of backup files would be a preferred and sufficient method to determine historical performance,” and that, “there is no difference between what would be found on any specific Devices and what could be found via iTunes and iCloud analysis (which Apple could test without a forensic inspection).”

Apple’s expert, Paul D. Martin, PhD, Computer Science—who has over a decade of experience in technology and forensics, including with performance testing and benchmarking of computer and other technological programs—explained the word “performance” can have a broad variety of meanings for a device. “To assess performance conditions,” Dr. Martin asserts that “it is important to perform tests on a device that is configured in a way that matches, as closely as possible, the configuration of the user’s device. Configuration depends both on the hardware and on what is installed on the hardware, including operating system, applications, and data.” He also adds that, “each user controls the state of his or her Device to the extent that it deviates from the basic iOS configuration,” which, along with, variations of installed software, specific device usage patterns, and network or Wi-Fi variations, will impact performance. Which is why he concluded, “the best record of what is installed on a particular Device is the Device itself.”

The Ruling:

Special Discovery Master Westerfield ruled against the plaintiff on the issue of imaging, stating that “other types of discovery would not provide sufficient information on the issue at hand,” and that “the defendant’s privacy concerns could be addressed through a robust protective order containing the following:

  • “The plaintiffs would select a neutral forensic expert to produce a mirror image of the computer’s hard drive in a timely fashion
  • “That expert would execute a confidentiality agreement and also abide by the protective order in place in the action
  • “Only that expert would be authorized to inspect or handle the computer or the mirror image (the plaintiffs and their counsel would not inspect or handle the mirror image
  • “The expert would not examine any non-relevant files or data on the computer, or anything designated as privileged or work-product protected information
  • “That expert would produce a report based upon his or her inspection that describes the files found and any relevant file-sharing information
  • “And that expert would disclose his or her report only to the defendant’s counsel, who could then lodge objections to the report based on privilege.”

SDM Westerfield also cited Herskowitz/Juel v. Apple, Inc. (N.D. Cal. Feb. 12, 2014) in which the court ordered the plaintiffs to deposit computers and devices at issue with a third-party vendor for forensic inspection, because the “data contained on Plaintiffs’ computers and devices is likely to be highly relevant, and admissible evidence under Federal Rule of Civil Procedure 26(b)(1).”

The SDM noted the potential privacy intrusions in Herskowitz/Juel were not as widespread, because only a small number of devices were imaged. In response, the number of devices available for forensic inspection was limited to much less than the 115 devices Apple had requested.

Meet and Confer:

Cooperation is the name of the game when it comes to determining whether mobile devices should be imaged and other complex eDiscovery cases like this one. And the SDM drove that home by stating the importance of both parties continuing to meet and confer, ensuring the order is carried out as determined by the court.

In her ruling, SDM Westerfield writes, “Given the above direction and following Apple’s designation of specific Devices to be examined, the meet and confer process is likely to be more productive than the parties’ past efforts. In this regard, the parties and their experts are in the best position to meet and confer on a proposal that minimizes exposure of content and private information to Apple, the parties’ experts, and Apple’s outside and inside attorneys and provides an appropriate tailored approach to discovery from these Devices.”

Written by Jim Gill
Content Writer, Ipro

 

Ipro FRCP Cheat SheetNeed to brush up on your Federal Rules of Civil Procedure as they apply to eDiscovery?

Download Ipro’s FRCP Cheat Sheet!